FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODERICK LIM GO,
Petitioner, No. 06-71575
v.
Agency No.
A095-617-600
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 9, 2011—Pasadena, California
Filed May 5, 2011
Before: J. Clifford Wallace and Susan P. Graber, Circuit
Judges, and Richard Mills,* Senior District Judge.
Opinion by Judge Wallace
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
5967
5970 GO v. HOLDER
COUNSEL
P. Joseph Sandoval, Gallagher Sandoval, PC, Los Angeles,
California; and Robert G. Berke, Berke Law officers, Canoga
Park, California, for the petitioner.
GO v. HOLDER 5971
C. Erb, Jr., and Don G. Scroggins, Office of Immigration Liti-
gation, United States Department of Justice, Washington,
D.C., for the respondent.
OPINION
WALLACE, Senior Circuit Judge:
Roderick Lim Go petitions for review from a decision of
the Board of Immigration Appeals (Board) denying his claims
for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction pur-
suant to 8 U.S.C. § 1252(b), and we deny Go’s petition.
I.
Go, a native and citizen of the Philippines, entered the
United States in early 2003 pursuant to a non-immigrant visa.
Though his visa expired in August 2003, Go did not depart or
otherwise obtain authorization to remain in the United States.
In November 2003, Go was charged with being a removable
alien for overstaying the term of his temporary visa.
Go contested removability and filed an application for asy-
lum, withholding of removal, and protection under the CAT.
Go alleged that he and his wife, Grace Tan Go,1 would be
subject to a sham criminal prosecution in the Philippines if
removed to that country. According to Go, he and his wife
had been falsely charged with kidnapping James King, a
member of a prominent family that resides in the Cebu region
of the Philippines. Go and his wife assert that they fled to the
United States to escape prosecution and to avoid retaliation by
the King family, which allegedly has significant political
influence over the government in Cebu. With respect to the
1
We address Tan Go’s claims in a memorandum decision filed concur-
rently with this opinion.
5972 GO v. HOLDER
CAT, Go averred that he would be subject to torture if he
were held in a Philippine detention facility pending his trial
for kidnapping.
At his August 2004 removal hearing before an immigration
judge (IJ), Go and the government each presented several wit-
nesses, affidavits, and other documentary evidence describing
the Philippine criminal justice system and the kidnapping
charges against the Gos. Go testified that he had become
involved in a drug-trafficking organization operated by King
in early 2002. Together, Go and King devised a “check kit-
ing” scheme to finance the purchase of illegal narcotics.
Approximately six months after Go joined the scheme, how-
ever, he and King had some sort of falling out. The evidence
supported two versions of what happened: either Go kid-
napped and assaulted King over a financial disagreement, or
King fabricated the charges to conceal his role in the illegal
scheme.
At the conclusion of the hearing, the IJ determined that the
evidence weighed against granting Go’s claims for relief.
Relying on Go’s admission to being involved in an illegal
drug-trafficking scheme, the IJ found him statutorily ineligi-
ble for asylum and withholding of removal. With respect to
Go’s claim that his kidnapping charges were pretext for gov-
ernment persecution, the IJ concluded that the charges had
been initiated as part of a legitimate criminal prosecution. See
Chanco v. INS, 82 F.3d 298, 301 (9th Cir. 1996) (holding that
“[p]ersons avoiding lawful prosecution for common crimes
are not ordinarily deemed refugees”). Then, relying on a gov-
ernment witness, who testified that Go would not be tortured
in a Philippine detention facility while awaiting trial, the IJ
concluded that Go failed to carry his burden of demonstrating
eligibility for relief under the CAT.
The Board denied Go’s subsequent appeal in two separate
orders. In a May 2005 order, the Board agreed with the IJ that
Go was statutorily ineligible for asylum and withholding of
GO v. HOLDER 5973
removal. Go’s CAT claim, however, was remanded for fur-
ther proceedings. According to the Board, the IJ may not have
considered various country reports suggesting a relatively
high frequency of abuse and mistreatment in Philippine deten-
tion facilities. The Board also expressed concern that the IJ
had improperly excluded testimony from a Philippine defense
attorney, who was familiar with the kidnapping charges filed
against Go.
After the IJ held additional proceedings, which addressed
these concerns, the Board issued a March 2006 order rejecting
Go’s claim for relief under the CAT. Relying on new evi-
dence that had been introduced on remand, the Board con-
cluded that Go was unlikely to be tortured in a Philippine
detention facility. In a divided decision, the Board empha-
sized that one of Go’s co-defendant’s in the kidnapping, who
had been detained pending trial, had not been tortured or oth-
erwise mistreated. The Board also cited the testimony of
Cezar Tajanlangit, a former prosecutor in the Philippines, who
testified that torture was uncommon in the facility where Go
would be detained. Relying on Tajanlangit’s testimony, the
Board reasoned that the potential for torture was reduced
because the kidnapping charges against Go had generated sig-
nificant media attention in Cebu. The “notoriety” of the kid-
napping case, the Board explained, “makes it unlikely that an
ill-intentioned officer would believe that he could abuse [Go]
without being reported in the press.” The Board further con-
cluded that torture in a government detention facility was not
likely because the Philippine Justice Department had recently
issued a resolution calling for the dismissal of the kidnapping
charges levied against Go.
Go now petitions for review of the Board’s May 2005 order
denying his claims for asylum and withholding of removal
and its March 2006 order denying his claim for protection
under the CAT.
5974 GO v. HOLDER
II.
Before addressing the merits of Go’s petition for review,
we first consider the parameters of our jurisdiction over his
claims. Under the Immigration and Nationality Act (INA), an
alien must file his petition for review “not later than 30 days
after the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1). Here, the Board denied Go’s asylum and with-
holding claims in a May 2005 order, but remanded Go’s CAT
claim for further proceedings. Go’s CAT claim was then
rejected in a March 2006 order. Because Go did not appeal
the Board’s denial of his claims for asylum and withholding
of removal within thirty days of the May 2005 order, the gov-
ernment asks us to clarify whether we have jurisdiction to
review those claims.
Our jurisdiction extends to each of Go’s claims for relief,
including his asylum and withholding claims. The Board’s
May 2005 order may have been the final administrative deci-
sion with respect to Go’s eligibility for asylum and withhold-
ing relief, but that decision was not a final order of removal
because it left open the possibility that Go might obtain CAT
relief. Under the INA, an order of removal does not become
administratively final until the earlier of a “(i) a determination
by the Board of Immigration Appeals affirming such order; or
(ii) the expiration of the period in which the alien is permitted
to seek review of such order by the Board of Immigration
Appeals.” 8 U.S.C. § 1101(a)(47)(B). Because the Board
remanded Go’s CAT claim for further proceedings, his
removal order did not become final until the Board rejected
all claims. See id. As the Supreme Court has explained, “the
term ‘final order[ ]’ . . . includes all matters on which the
validity of the final order is contingent.” See INS v. Chadha,
462 U.S. 919, 938 (1983) (some internal quotation marks
omitted). Here, Go’s final order of removal is contingent, at
least in part, on the denial of his claim for asylum, his with-
holding claim, and his claim pursuant to the CAT. We there-
fore have jurisdiction to consider each of these claims. See id.
GO v. HOLDER 5975
Our analysis holds true notwithstanding our decision in
Castrejon-Garcia v. INS, 60 F.3d 1359 (9th Cir. 1995). There,
we held that a remand to the Board for the sole purpose of
considering an alien’s request for voluntary departure did not
affect the finality of the Board’s removal order. Id. at
1361-62. We reached this conclusion because the removal
decision was final, that is, the immigration tribunals had
definitively resolved that petitioner Castrejon-Garcia would
be required to leave the United States (whether voluntarily or
involuntarily). Id. at 1362. Here, on the other hand, the
Board’s remand of Go’s CAT claim left open the possibility
that he would obtain relief from removal. See 8 C.F.R.
§ 1208.17(a) (providing that an alien is entitled to deferral if
“he or she is more likely than not to be tortured”). Accord-
ingly, because Go’s removal order did not become final until
the Board rejected each of his claims for relief, and given that
Go filed his petition for review of all three claims within
thirty days of the Board’s March 2006 final order, our juris-
diction extends to each of his claims.
III.
Having determined that jurisdiction is proper, we turn now
to the merits of Go’s petition. The INA bars an applicant from
obtaining asylum and withholding relief when “there are seri-
ous reasons” to believe that he or she “committed a serious
nonpolitical crime” before arriving in the United States. 8
U.S.C. §§ 1158(b)(2)(A)(iii) (asylum), 1231(b)(3)(B)(iii)
(withholding). We interpret “ ‘serious reasons’ to believe” as
being tantamount to probable cause. McMullen v. INS, 788
F.2d 591, 599 (9th Cir. 1986), overruled on other grounds by
Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005)
(en banc) (per curiam). Under our precedent, we must uphold
the Board’s conclusion that an alien is ineligible for relief if
that determination is supported by “substantial evidence.” See
id. “We may reverse the decision of the Board only if the
applicant shows that the evidence compels the conclusion that
5976 GO v. HOLDER
the asylum decision was incorrect.” See Gu v. Gonzales, 454
F.3d 1014, 1018 (9th Cir. 2006).
[1] We agree with the Board’s ruling that Go’s drug-
trafficking activities prior to entering the United States bar
him from obtaining asylum and withholding relief. In consid-
ering drug-trafficking offenses under the INA, we have con-
sistently deferred to the Board’s conclusion that these
offenses presumptively constitute “particularly serious
crimes.” See Miguel-Miguel v. Gonzales, 500 F.3d 941, 949
(9th Cir. 2007) (evaluating whether an alien was statutorily
eligible for withholding under a similar provision contained in
8 U.S.C. § 1231(b)(3)(B)(ii)). Because “a ‘particularly serious
crime’ is more serious than a ‘serious nonpolitical crime,’ ” it
follows that drug trafficking is presumptively a serious
offense under sections 1158(b)(2)(A)(iii) and
1231(b)(3)(B)(iii). See In re Frentescu, 18 I. & N. Dec. 244,
247 (B.I.A. 1982), modified on other grounds by In re C-, 20
I. & N. Dec. 529 (B.I.A. 1992); Ramirez-Peyro v. Gonzales,
477 F.3d 637, 639 (8th Cir. 2007) (treating drug trafficking as
a “serious nonpolitical crime” under the INA). Here, Go
points to nothing to rebut the presumption that his drug-
trafficking offense constitutes a serious crime, and he does not
identify any facts showing that his offense had some “political
aspect” or “political objective.” See INS v. Aguirre-Aguirre,
526 U.S. 415, 429 (1999) (explaining that a serious crime is
nonpolitical if it lacks a “political aspect” or “is grossly out
of proportion to the political objective” (internal quotation
marks omitted)). We therefore accept the Board’s conclusion
that Go’s drug-trafficking offense constitutes a serious nonpo-
litical crime.
[2] We also agree with the Board’s determination that
there are serious reasons for believing that Go actually com-
mitted this offense. During his removal hearing, Go explicitly
admitted under oath to being involved in a scheme to finance
“drug transactions” while living in the Philippines. He then
stated that he knowingly drove an accomplice to “drug deals”
GO v. HOLDER 5977
for a period of six months. These admissions are sufficient to
establish probable cause for believing that Go engaged in a
drug-trafficking scheme before entering the United States. See
McMullen, 788 F.2d at 599; United States v. Brady, 819 F.2d
884, 889 (9th Cir. 1987) (defendant’s admission to a particu-
lar offense is sufficient to establish probable cause to believe
that he actually committed that offense). Because the record
does not compel the conclusion that probable cause was lack-
ing, we must uphold the Board’s conclusion that Go’s offense
renders him ineligible for asylum and withholding relief under
sections 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii). See Gu,
454 F.3d at 1018.
IV.
[3] Although Go’s drug-trafficking crime renders him inel-
igible for asylum and withholding of removal, that offense
does not affect his eligibility for deferral relief under the
CAT. See 8 C.F.R. § 1208.17(a); Ramirez-Peyro, 477 F.3d at
639. To prevail under the CAT, “an applicant must show ‘that
it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.’ ” Santos-Lemus
v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008), quoting 8
C.F.R. § 1208.16(c)(2). The applicant must also demonstrate
that the torture will “be inflicted ‘by or at the instigation of
or with the consent or acquiescence of a public official.’ ” Id.,
quoting 8 C.F.R. § 1208.18(a)(1). The Board’s denial of an
applicant’s CAT claim will be overturned only if the evidence
would compel a reasonable factfinder to conclude that it is
more likely than not that the alien will be subjected to torture.
Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004).
[4] Although some instances of abuse and mistreatment
have been reported in Philippine detention facilities, the
Board reasonably concluded that it is unlikely that Go will be
tortured in the Philippines. We have emphasized that the lack
of harm to similarly situated family members and close asso-
ciates generally undercuts an alien’s fear of harm at the hands
5978 GO v. HOLDER
of the government. See, e.g., Rodriguez-Rivera v. INS, 848
F.2d 998, 1006 (9th Cir. 1988). Here, Go was not the only
person charged with kidnapping King. Yet, one of his alleged
accomplices has been detained for some time without harm or
incident. Similarly, while several of Go’s family members
have been charged with participating in Go’s alleged crimes,
none has been taken into government custody, placed in a
detention center, or tortured. See id.
[5] The likelihood of torture is further reduced in this case
because the Philippine government has ordered that the kid-
napping charges against Go be dismissed. If Go is no longer
subject to a criminal prosecution in the Philippines, it follows
that he is unlikely to be detained, let alone tortured. Similarly,
Go’s ability to defend successfully against his kidnapping
charges indicates that he will not be unable to vindicate his
legal rights upon return to the Philippines, including his right
to seek protection from illegal torture. See An Act Penalizing
Torture and Other Cruel, Inhuman and Degrading Treatment
or Punishment and Prescribing Penalties Therefore, Rep. Act
No. 9745 (Nov. 10, 2009) (Phil.) (prohibiting torture and
enacting harsh penalties on those that abuse or otherwise mis-
treat individuals “placed under investigation or held in custo-
dy”).
Moreover, even if the kidnapping charges do go forward,
additional evidence supports the Board’s finding that Go is
not likely to be tortured in the Philippines. At Go’s second
hearing before the IJ, Tajanlangit, a former prosecutor in
Cebu, testified that torture is not common in the facility where
Go would be detained. Tajanlangit stated that “nothing unto-
ward” would happen to Go if he is detained during the pen-
dency of a potential trial. Rather, the “controversial” nature of
Go’s case would increase public scrutiny over the govern-
ment’s conduct and would “make[ ] it unlikely that an ill-
intentioned officer would believe that he could abuse [Go]
without being reported in the press.”
GO v. HOLDER 5979
[6] Go counters that his credible testimony and the country
reports in the record compel the conclusion that he is likely
to be tortured. We disagree. Although Go testified that he
fears torture if detained while awaiting trial, other evidence
supports the Board’s conclusion that his fear is unfounded. As
we have explained, “[t]he possibility of drawing two inconsis-
tent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by sub-
stantial evidence.” Singh-Kaur v. INS, 183 F.3d 1147, 1150
(9th Cir. 1999) (internal quotation marks omitted); see also
Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir.
2005) (indicating that even when an alien’s testimony is cred-
ited, an immigration court may also consider the other evi-
dence contained in the record in reaching its decision). Thus,
Go has not sustained his burden of proof on his CAT claim.
[7] Go correctly points out that the country reports
describe several instances of abuse and corruption within the
Philippine criminal justice system. Nevertheless, other infor-
mation contained in these reports supports the Board’s con-
clusion that torture is unlikely. See Gonzalez-Hernandez v.
Ashcroft, 336 F.3d 995, 999-1000 (9th Cir. 2003) (explaining
that the Board may use its expertise in considering “contradic-
tory” and “ambiguous” country reports and “decid[ing] which
portions of the report are relevant to the applicant”). Accord-
ing to these reports, Philippine officials are “more likely to
follow correct procedures” when a criminal suspect hails from
“an influential position or is of a higher social status.” Here,
the undisputed record provides that Go belongs to an affluent
family that maintains a fairly high social status in the Philip-
pines.
[8] Similarly, while the country reports contain generalized
evidence suggesting a relatively high level of mistreatment
and abuse, the “notoriety” of Go’s kidnapping charges sup-
ports the conclusion that Go is unlikely, under the specific cir-
cumstances of this case, to be harmed or mistreated in the
Philippines. See Afriyie v. Holder, 613 F.3d 924, 933-34 (9th
5980 GO v. HOLDER
Cir. 2010) (explaining that the Board may give specific evi-
dence greater weight than general information contained in a
country report). Viewing the record as a whole, we therefore
hold that substantial evidence supports the Board’s conclusion
that Go is not likely to be tortured upon return to the Philip-
pines, and thus Go did not meet his burden of proof.
V.
[9] Finally, we reject Go’s argument that he was deprived
of his right to due process. As we have explained numerous
times, the Fifth Amendment guarantees due process in immi-
gration proceedings. See, e.g., Lara-Torres v. Ashcroft, 383
F.3d 968, 973 (9th Cir. 2004). This requires that “an alien [be]
given a full and fair opportunity to be represented by counsel,
to prepare an application for . . . relief, and to present testi-
mony and other evidence in support of [that] application.”
Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926 (9th Cir.
2007).
[10] Go contends that the Board and the IJ violated his due
process rights by crediting and relying on Tajanlangit’s testi-
mony, which Go describes as “questionable” and “inconsis-
tent with reality.” Although the government does not usually
present live witnesses during an alien’s removal hearing,
nothing precludes the government from doing so. Under our
precedent, “[t]he sole test for admission of evidence” in immi-
gration proceedings “is whether the evidence is probative and
its admission is fundamentally fair.” Rojas-Garcia v. Ash-
croft, 339 F.3d 814, 823 (9th Cir. 2003) (internal quotation
marks omitted). Tajanlangit’s testimony, which was clearly
relevant and based on personal knowledge, did not deprive Go
of a fundamentally fair proceeding. See id. Go had the oppor-
tunity to cross-examine Tajanlangit, to present contrary evi-
dence, and to impeach his testimony. There is nothing in the
record compelling the conclusion that Tajanlangit’s testimony
somehow precluded Go from presenting his claims for relief.
GO v. HOLDER 5981
[11] Moreover, this case does not involve a true credibility
determination. Neither the Board nor the IJ ruled Tajanlangit
to be truthful or untruthful. Instead, the immigration courts
simply weighed the probative value of inconsistent and vary-
ing testimony to determine where the preponderance fell. See
Ochave v. INS, 254 F.3d 859, 866 (9th Cir. 2001) (even if the
evidence can be read as supporting a credible applicant’s
claims, when there is “substantial evidence tending in the
other direction[,] . . . our standard of review dictates” that we
defer to the Board). That the Board ultimately weighed the
totality of the evidence in the government’s favor and held
that Go failed to meet his burden of proof did not deprive Go
of his right to due process. See id.
PETITION DENIED.